State v. Gorman ( 2015 )

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
STATE OF ARIZONA, Appellee,
v.
RICKEY LEE GORMAN, Appellant.
Nos. 1 CA-CR 14-0611, 1 CA-CR 14-0619
(Consolidated)
FILED 8-27-2015
Appeal from the Superior Court in Maricopa County
Nos. CR2013-457819-001, CR2005-113240-001
The Honorable Bruce R. Cohen, Judge
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee
Maricopa County Public Defender’s Office, Phoenix
By Nicole M. Abarca
Counsel for Appellant
Rickey Lee Gorman
Appellant
STATE v. GORMAN
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Maurice Portley delivered the decision of the Court, in
which Judge John C. Gemmill and Judge Michael J. Brown joined.
P O R T L E Y, Judge:
¶1 This is a consolidated appeal under Anders v. California, 386
U.S. 738 (1967) and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969). Counsel
for Defendant Rickey Lee Gorman has searched the entire record and
advised us that she has been unable to discover any arguable questions of
law, and has filed a brief requesting us to conduct an Anders review of the
record. Gorman was given the opportunity and has filed a supplemental
brief, as well as a modified supplemental brief for our consideration.
FACTS1
¶2 Gorman was charged with failure to register as a sex offender
in December 2013 in Maricopa County Superior Court No. CR 2013-457819.
He rejected the plea offer at the settlement hearing, and the case was set for
trial, and, after some delays, ultimately went to trial. After the State rested,
Gorman requested a “judgment of acquittal under [Arizona] Rule [of
Criminal Procedure (“Rule”)] 20” but the trial court denied his motion. The
defense rested, and the jury was provided with the final jury instructions
and heard closing argument. The jury subsequently found Gorman guilty
of failing to register as a sex offender.
¶3 At the outset of the sentencing hearing, the court entered
judgment that Gorman was guilty of failure to register as a sex offender
and, as a result of that conviction, the court found that Gorman violated his
lifetime probation in Maricopa County Superior Court No. CR 2005-
113240.2 After the court heard from the parties, Gorman was sentenced to
1 We view the facts “in the light most favorable to sustaining the verdict,
and resolve all reasonable inferences against the defendant.” State v.
Rienhardt, 190 Ariz. 579, 588-89, 951 P.2d 454, 463-64 (1997).
2 Gorman was indicted in May 2005 for attempted sexual assault, a class 3
felony, kidnapping, a class 2 felony, and assault, a class 1 misdemeanor, in
Maricopa County Superior Court No. CR 2005-113240. Pursuant to a plea
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STATE v. GORMAN
Decision of the Court
two and a half years in prison for failing to register and given 253 days of
presentence incarceration credit, and was sentenced to a consecutive three
and a half years in prison for violating probation and given 443 days of
presentence incarceration.3
¶4 We have jurisdiction over Gorman’s consolidated appeals
pursuant to Article 6, Section 9, of the Arizona Constitution, and Arizona
Revised Statutes (“A.R.S.”) sections 12-120.21(A)(1), 13-4031, and
-4033(A)(1).4
DISCUSSION
¶5 Gorman raises the following issues in his supplemental brief,
as modified: (1) ineffective assistance of counsel, including the failure to
call an expert witness, failure to contact N.A.A.C.P. to appear as an amici,
failing to allow Gorman to testify on his own behalf,5 continuing to try to
get Gorman to take a plea agreement when he wanted to go to trial, failing
to respect confidential privilege, and preventing Gorman from notifying
the court of evidence that could prove that he was not guilty;6 (2) violation
agreement, he pled no contest to the amended count one, attempted sexual
assault, and count two, kidnapping, both as non-dangerous and non-
repetitive offenses, and the court accepted the plea. He subsequently was
sentenced to lifetime probation for the attempted sexual assault pursuant
to the plea agreement, and a five year prison term for the kidnapping
charge. And as relevant, the adult probation officer filed a petition to
revoke his probation in October 2013, just before his indictment for failing
to register.
3 The court also placed Gorman on lifetime probation for the attempted
sexual assault charge in CR 2005-113240, but rescinded that portion of the
sentence once it was clarified that Gorman had served his five year
kidnapping sentence.
4 We cite the current version of the applicable statutes absent changes
material to this decision.
5 The trial transcript reveals that the court advised Gorman that he had the
right to testify as well as the right not to testify, and he told the court that
“I would just actually like to exercise my right to remain silent.”
6 The trial transcript also reveals that Gorman wanted to show the court
some documents, and the court advised him that he could talk with his
lawyer about the documents to determine if those could be presented
during the defense case. The documents were not identified, but no
documents were marked or presented for consideration by the jury.
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STATE v. GORMAN
Decision of the Court
of double jeopardy; (3) due process violations; (4) illegal waiver of rights to
speedy trial; (5) prosecutorial misconduct; (6) violation of the exclusion of
witness rule because the presence of all three witnesses during testimony
was prejudicial to a fair trial; (7) failure to provide Gorman with
exculpatory evidence during discovery; (8) entrapment; (9) insufficient
evidence; (10) fabrication of documents; (11) sentencing errors; (12) duress
of imprisonment; and (13) newly discovered evidence. We will address
each in turn.
A. Ineffective Assistance of Counsel
¶6 Gorman first contends that his lawyer was ineffective and
lists myriad ways that counsel was ineffective – whether waiving time;
failing to ask the N.A.A.C.P to file an amicus brief; failing to allow Gorman
to testify on his own behalf; continuing to try to get Gorman to take a plea
agreement when he wanted to go to trial; failing to respect confidential
privilege; and preventing Gorman from notifying the court of evidence that
could prove that he was not guilty. We cannot address any of the ways
counsel allegedly was ineffective because our supreme court has directed
that any claim for ineffective assistance of counsel cannot be raised on direct
appeal but must be raised in a separate petition for post-conviction relief
under Rule 32 after the direct appeal. See State ex rel. Thomas v. Rayes, 214
Ariz. 411, 415, 153 P.3d 1040, 1044 (2007) (noting that “a defendant may
bring ineffective assistance of counsel claims only in a Rule 32 post-
conviction proceeding—not before trial, at trial, or on direct review”).
Because Gorman can raise the ineffective assistance of counsel claim
pursuant to Rule 32 with the trial court, we will not consider the items
related to his list of how his lawyer may have been ineffective during the
pretrial and trial process.
B. Waiver of Claims
¶7 Gorman also listed various claims without referring to the
record, outlining his argument, or citing any legal citation to support his
itemized argument. The undeveloped, itemized claims include: double
jeopardy violations; due process violations; prosecutorial misconduct;
illegal waiver of speedy trial time limits; failure to provide discovery that
amounted to exculpatory information; entrapment;7 failure to enforce the
7 Even if Gorman had listed the defense of entrapment as a defense and
raised it at trial, he was required to admit all the elements of the charged
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STATE v. GORMAN
Decision of the Court
invocation of the exclusion of witnesses during the trial; newly discovered
evidence; sentencing errors; and duress of imprisonment. Because he
itemized his arguments without referring to matters in the record, outlining
his argument, or providing a citation of legal authority supporting his
claims he has waived those issues and we will not address them. State v.
Cons, 208 Ariz. 409, 416, ¶ 18, 94 P.3d 609, 616 (App. 2004); see Ariz. R. Crim.
P. 31.13(c)(1)(vi) (argument shall contain “citations to the authorities,
statutes and parts of the record relied on”); see State v. Moody, 208 Ariz. 424,
452 n.9, ¶ 101, 94 P.3d 1119, 1147 n.9 (2004); see also ARCAP 13(a)(7)(B) (“For
each contention, [an argument must contain] references to the record on
appeal . . . , and the applicable standard of appellate review with citation to
supporting legal authority.”). Consequently, because Gorman only
itemized his complaints and did not refer to the record or provide any legal
citation to support his argument, we will only address the failure to enforce
the exclusion of witness rule and the insufficiency of evidence arguments.
C. Exclusion of Witnesses
¶8 During the 2014 trial, and while Ms. Laura Alzubi, a forensic
scientist who examines latent fingerprints, was testifying, there was a short
recess to allow the court to resolve matters out of the jury’s presence.
During that session, the court noticed that two of the State’s witnesses had
entered the courtroom during Alzubi’s testimony. After the State identified
the two witnesses, the court stated that the two witnesses were only present
for Alzubi’s testimony about her job description and the records she
reviewed, and then determined that their entry was an “inadvertent
violation of the rule.” Subsequently, and after giving the defense an
opportunity to add to the record, the court asked, and the witnesses left the
courtroom.
¶9 Arizona Rule of Criminal Procedure Rule 9.3(a) provides that
the court may “exclude prospective witnesses from the courtroom during
opening statements and the testimony of other witnesses.” We review the
court’s determination that the entry of the witnesses into the courtroom
during the beginning of Alzubi’s testimony was inadvertent for an abuse of
discretion, but will only disturb that decision if there is a showing of
prejudice. State v. Denton, 101 Ariz. 455, 458, 420 P.2d 930, 933 (1966); see
also State v. Hadd, 127 Ariz. 270, 277, 619 P.2d 1047, 1054 (App. 1980) (“a
offenses before being entitled to an instruction on entrapment. See State v.
Abrams, 164 Ariz. 185, 186, 791 P.2d 1068, 1069 (App. 1990).
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STATE v. GORMAN
Decision of the Court
mere violation of th[e] rule does not result in automatic reversal.”) (internal
citations omitted).
¶10 The trial court saw the witnesses come in, pointed it out to
counsel, found that their entry was inadvertent and that they did not hear
any of Alzubi’s substantive testimony. The court then asked them to wait
outside of the courtroom and they left the courtroom before Alzubi
continued to testify. Based on the record, we find no abuse of discretion or
resulting prejudice.
D. Insufficiency of Evidence
1. Rule 20 Motion
¶11 Although Gorman has not pointed out how the trial evidence
was insufficient, we will assume that his argument is a continuation of the
denial of his Rule 20 motion. We review the denial of a motion for judgment
of acquittal de novo. State v. Harm, 236 Ariz. 402, 406, ¶ 11, 340 P.3d 1110,
1114 (App. 2015). But, we review the evidence “in the light most favorable
to sustaining the verdict, and resolve all reasonable inferences against the
defendant.” State v. Rienhardt, 190 Ariz. 579, 588-89, 951 P.2d 454, 463-64
(1997). As a result, a judgment of acquittal can only be granted “if there is
no substantial evidence to warrant a conviction.” Ariz. R. Crim. P. 20(a).
Substantial evidence is “proof that reasonable persons could accept as
adequate and sufficient to support a conclusion of defendant’s guilt beyond
a reasonable doubt.” State v. Mathers, 165 Ariz. 64, 67, 796 P.2d 866, 869
(1990) (internal citation and quotation marks omitted); see State v. Cid, 181
Ariz. 496, 500, 892 P.2d 216, 220 (App. 1995).
¶12 Here, the State was required to prove each element of the
charge of failure to register as a sex offender beyond a reasonable doubt.
The State had to prove, and the court instructed the jury that it had to find
beyond a reasonable doubt, that: (1) Gorman was required to register as a
sex offender; (2) he moved his residence; and (3) he failed to notify the
Sheriff’s Office in writing and in person within seventy-two hours of
moving. See A.R.S. § 13-3822(A).
¶13 Here, the jury heard from the State’s witnesses, including Ms.
Alzubi; Nicole Sinu, the owner of the Coronado Hotel where Gorman
stayed; Nicolae Sinu, the manager of the hotel, who filled out the hotel
registration card for Gorman; Lauren Guida, an adult probation officer,
who was trying to locate and supervise Gorman on probation; Bertha
Ceballos, a record specialist from the Sheriff’s Office, who registers sex
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STATE v. GORMAN
Decision of the Court
offenders; and Phoenix Detective Lindy Steele, who tried to verify
Gorman’s address without success.
¶14 Gorman, by counsel, was able to cross-examine each witness,
and give a closing argument summarizing all the problems with the State’s
case. The jury, in listening to the testimony and reviewing the evidence,
had to determine the credibility of the witnesses and weigh any conflicting
testimony, and, in fact, was duly instructed to take into account the
witnesses’ credibility. And the jury had the opportunity to observe the
witnesses’ memory, manner while testifying, any motive or prejudices they
might have, and weigh any inconsistent statements made in light of all the
evidence in the case. We do not weigh or re-weigh the evidence. State v.
Guerra, 161 Ariz. 289, 293, 778 P.2d 1185, 1189 (1989); State v. Williams, 209
Ariz. 228, 231, ¶ 6, 99 P.3d 43, 46 (App. 2004) (“Although the record contains
some conflicting evidence, it was for the jury to weigh the evidence and
determine the credibility of the witnesses.”). Consequently, because there
was substantial evidence to support the jury verdict, the court did not err
in denying the Rule 20 motion, and we find no basis to reverse the
conviction.
2. Probation Revocation.
¶15 We review the court’s determination that Gorman violated
probation for an abuse of discretion. State v. Portis, 187 Ariz. 336, 338, 929
P.2d 687, 689 (App. 1996). To revoke an appellant’s probation, the State
need only establish a probation violation by a preponderance of the
evidence. State v. Moore, 125 Ariz. 305, 306, 609 P.2d 575, 576 (1980) (citation
omitted); State v. Vaughn, 217 Ariz. 518, 522, ¶ 18, 176 P.3d 716, 720 (App.
2008). And we will affirm the court’s finding unless that finding is arbitrary
or unsupported by any theory of the evidence. Moore, 125 Ariz. at 306, 609
P.2d at 576.
¶16 When Gorman was placed on lifetime probation in 2006, some
of the relevant terms included that he “1. [o]bey all laws[,]” as well as “22.
[r]egister as a [s]ex [o]ffender if required by law.” He was subsequently
reinstated on probation a number of times, and the uniform conditions of
supervised probation contained similar terms, including obeying all laws,
as well as getting prior written approval before making any temporary or
permanent changes to residence, and registering as a sex offender if
required by law.
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STATE v. GORMAN
Decision of the Court
¶17 A petition to revoke his probation was filed in October 2013
alleging various terms including that Gorman failed to register as a sex
offender on or about October 22, 2013, and failed to get prior approval
before changing his residence. The hearing was continued and merged
with the trial; and Gorman had the full protections of the Due Process
Clause of the Fifth and Fourteenth Amendments during the trial. See
Gagnon v. Scarpelli, 411 U.S. 778, 781-82 (1973); State v. Adler, 189 Ariz. 280,
282, 942 P.2d 439, 441 (1997). Once the jury determined that Gorman failed
to register as a sex offender as required by statute beyond a reasonable
doubt, the State had, in essence, proven by a preponderance of the evidence
that Gorman had violated probation. Because the trial evidence supported
the probation violation, the court did not abuse its discretion.
E. Fundamental Error Review
¶18 We have read and considered the opening brief and Gorman’s
supplemental brief, and have searched the entire record for reversible error.
See Leon, 104 Ariz. at 300, 451 P.2d at 881. We have addressed the issues we
can that were raised in Gorman’s supplemental arguments. We have
searched the entire record for reversible error and have found none. All of
the proceedings were conducted in compliance with the Arizona Rules of
Criminal Procedure. The record, as presented, reveals that Gorman was
represented by counsel at all stages of the proceedings in both matters, the
pretrial proceedings were resolved, and the sentences that were ultimately
imposed were within the statutory limits.
¶19 After this decision is filed, counsel’s obligation to represent
Gorman in this appeal has ended. Counsel must only inform Gorman of
the status of the appeal and Gorman’s future options, unless counsel
identifies an issue appropriate for submission to the Arizona Supreme
Court by petition for review. State v. Shattuck, 140 Ariz. 582, 584-85, 684
P.2d 154, 156-57 (1984). Gorman may, if desired, file a motion for
reconsideration or petition for review pursuant to the Arizona Rules of
Criminal Procedure.
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STATE v. GORMAN
Decision of the Court
CONCLUSION
¶20 Accordingly, we affirm Gorman’s convictions and sentences
in both CR 2005-113240 and CR 2013-457819.
:ama
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